Taiwan: Someone Has Been Hiding a Dark Secret

 by Roger C. S. Lin & Richard W. Hartzell  

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In the post-Napoleonic era, administration of territory acquired under the principle of conquest must be conducted according to the laws of war, which include the laws of military occupation. 

Since the Shanghai Communique was promulgated in 1972, the Commander-in-Chief has insisted on a policy which foresees democratic Taiwan being united with the People’s Republic of China (PRC) at some unspecified future date. However, the details of how such unification is supposed to work are being left to the officials on the two sides of the Taiwan Strait to decide. 

While the Executive Branch feels that such a future unification of Taiwan with the PRC is desirable, their vision is shared by few, if any, US academics, political experts, or the staff of major think-tanks.  Moreover, the members of the Taiwan Caucus in the Congress have consistently been opposed to any prospect of Taiwan’s current democratic development being snuffed out by such a merger.

Many so-called Taiwan experts are quoted in the press on a weekly basis, but none of them have been able to explain why the US President is so insistent in handling the Taiwan question in this fashion.  Indeed, this is probably the most incongruous piece of US “foreign policy” that exists today. 

However, simply put, the Executive Branch’s Taiwan policy is based on the fact that consecutive US administrations over the past fifty years (from President Truman to the present) have been hiding a very dark secret. 

We can discover this dark secret by doing some careful reverse engineering on various key statements of State Department officials over the years.  Colin Powell’s remark made in Beijing on October 25, 2004, is an excellent starting point.  Powell has a military background, and he said that, “Taiwan does not enjoy sovereignty as a nation.”

Looking back at the historical record, the Republic of China‘s current claims to jurisdiction over the Taiwan area dates back to October 25, 1945, when the Japanese commanders surrendered to the representatives of Chiang Kai-skek, under the direction of the military government of General Douglas MacArthur. 

The Chinese immediately announced that date as “Taiwan Retrocession Day,” stating that the transfer of sovereignty was a fait accompli.  Powell of course knows that such an analysis is totally incorrect, and October 25, 1945, only marks the beginning of the military occupation of Taiwan.  Moreover, the ROC is only a subordinate occupying power under the United States, which is the “principal occupying power.” 

Why is the United States the “principal occupying power?”  The reason is because the United States is the conqueror. The United States Congress declared war against the Empire of Japan on December 8, 1941.  All military attacks against the four main Japanese islands and (Japanese) Taiwan in the 1941 to 1945 period were conducted by United States military forces.  After the cessation of hostilities, legal relationships for the disposition of Taiwan territory all arise from the simple fact of who conquered whom.  In the post-Napoleonic era, administration of territory acquired under the principle of conquest must be conducted according to the laws of war, which include the laws of military occupation.

In December of 1949, with civil war raging on the mainland, high officials of the Republic of China moved their government to Taiwan, an area which their military troops were occupying under the delegated administrative authority of the United States Military Government (USMG). In the post-war San Francisco Peace Treaty (SFPT), Japan renounced sovereignty over Taiwan, but no recipient was named for the transfer of “legal title.”

For those persons with knowledge of military jurisdiction under the US Constitution, the conclusion is clear: Taiwan is an overseas territory of the USA.

How is this conclusion possible?  A quick re-summary can be given as follows:  In 1895, the Qing Emperor of China ceded Taiwan to Japan.  After WWII, and with the coming into force of the SFPT on April 28, 1952, Japan gave up sovereignty over Taiwan, and the United States (as  "occupying power” as spoken of in the Hague and Geneva Conventions) has fathered a child that it doesn’t want to tell anyone about.  That child is Taiwan, and it is being held by the US military establishment as an undetermined, unorganized, and unincorporated cession. Obviously, the Commander-in-Chief is head of the US military power structure, and for the last fifty years he has handled the “Republic of China on Taiwan” question based on his war powers as well as his plenary power over foreign affairs. 

As we know, under the Taiwan Relations Act, the US government does not recognize the nomenclature of “Republic of China” after January 1, 1979.  In the post-war peace treaty, Japan renounced the sovereignty of Taiwan, and no recipient was named; however Article 23 specifies the United States as the principal occupying power.  Powell’s statement is thus confirmed: “Taiwan does not enjoy sovereignty as a nation.”  Moreover, based on these facts, the standing of the ROC on Taiwan is easily derived: it is a “subordinate occupying power” (beginning October 25, 1945) added to a “government in exile” (beginning December 1949). 

Importantly, it can be held that under the SFPT and the laws of war, Taiwan is under the exclusive jurisdiction of the United States. The decision to delegate that jurisdiction to the Republic of China military forces is not directly authorized by the SFPT.  Hence, under such an arrangement, and with reference to US Supreme Court cases from the post-Spanish American War era, a strong argument can be made that the Taiwanese are entitled to “fundamental rights” under the US Constitution.

The US Supreme Court has held that the “liberty” of the Fifth Amendment is a fundamental constitutional right. The right to travel, and to carry a passport, are part of that “liberty.”  So, in the present era, what is the basis for native Taiwanese persons to be carrying passports issued under the authority of the Republic of China?  Shouldn’t they be carrying passports issued under the authority of the United States?

This presents a major dilemma.  However, by opposing Taiwan independence and forcing Taiwan to remain on a flight-path for eventual unification with the PRC, the officials of the US Executive branch can hope that some day this entire mess can be swept under the carpet and forgotten about.

The above analysis is easily confirmed when we consider the March 2006 “National Unification Council” (NUC) controversy.  Why was it so upsetting to the US Executive Branch when President Chen of the ROC on Taiwan made a decision to abolish the NUC?  In reality, this Council had not even been functioning for several years.  However, the decision to abolish it indicates that Taiwan is deviating from the flight-path for eventual unification with the PRC, and in the Executive Branch’s viewpoint, that is very upsetting.     

For those who are anxious for Taiwan to continue to develop on the path of freedom and democracy, all the facts regarding its “USA parentage” are certainly worthy of more careful investigation. Importantly, the members of the Taiwan Caucus in Congress should wake up to the reality that they have jurisdiction over the “civil rights and political status” of native persons in Taiwan under the territorial clause of the US Constitution.

Foreign Affairs, National Defense

Read more articles by Roger C. S. Lin & Richard W. Hartzell